Medical negligence that led to loss of life and the legal exclusion of paying non pecuniary damages to relatives
JUDGMENT
Sarishvili-Bolkvadze v. Georgia 19.07.2018 (no. 58240/08)
SUMMARY
The case of Sarishvili-Bolkvadze v. Georgia (application no. 58240/08) concerned the applicant’s complaint about the authorities’ duty to protect her son’s life from medical negligence and the adequacy of their response to his death.
The European Court of Human Rights held, unanimously, that there had been: a violation of Article 2 (right to life) of the European Convention on Human Rights because of the authorities’ failure to provide an effectively functioning regulatory framework, and a violation of Article 2 because of shortcomings in the civil proceedings for compensation.
The Court noted that some of the doctors who had cared for the applicant’s son had not had proper licences and that the hospital itself had been carrying out various medical activities without the necessary permits. That showed failings in Georgia’s implementation of its regulatory framework for ensuring patient safety, meaning it had failed to live up to its duties under the Convention.
While the Court found that the criminal investigation in the case was in line with Convention requirements, it ruled that the civil proceedings were not. Domestic law had prevented the applicant from being awarded compensation for non-pecuniary damage as next-of-kin, which meant there had been a further violation of her rights.
PROVISION
Article 2
PRINCIPAL FACTS
The applicant, Gulnara Sarishvili-Bolkvadze, is a Georgian national who was born in 1950 and lives in Batumi (Georgia).
The applicant’s son, G.B., was injured after falling from a crane in February 2004. He was taken to a hospital intensive care unit with a fractured skull and brain damage and was also later treated for bleeding in the stomach. In March he was transferred to a general ward, however, he suffered bleeding from a duodenal ulcer and was given emergency surgery. He died on 14 March 2004.
The authorities opened a criminal investigation and in June 2004 a panel of experts stated that there had been a medical error in his treatment. The criminal case was closed in August 2004 without result, re-opened in 2006 and then closed again in 2008. The applicant refused all along to allow G.B.’s body to be exhumed for examination. Relying on the experts’ findings on the necessity of that measure, prosecutors said they could not find proof of a causal link between the medical error and the death.
In the meantime, the hospital dismissed the neurosurgeon responsible for G.B.’s treatment and reprimanded two intensive care specialists and a surgeon.
The applicant also launched civil proceedings against the hospital, its medical staff and the Ministry of Labour, Health and Social Affairs of the local region on the grounds of medical negligence for failure to treat the duodenal bleeding properly.
The domestic courts agreed with the findings of a panel of experts that there had been a medical error in G.B.’s treatment, that some of the doctors who had cared for the applicant’s son had not had proper licences, and that the hospital itself had been carrying out certain medical activities without the necessary permits.
The Supreme Court of Georgia in May 2008 ultimately awarded the applicant about 2,700 euros in respect of pecuniary damage but found that domestic law did not provide for awards in respect of non-pecuniary damage to relatives of someone who had died as a result of medical negligence.
THE DECISION OF THE COURT
Article 2
The Court reiterated its case-law on States’ duties when it came to medical negligence allegations. In particular, they had to have a proper regulatory framework to ensure patients’ safety, including adequate provision for securing high professional standards. They were also expected to make sure the regulatory framework functioned effectively, including supervision and enforcement.
It noted that the domestic courts had established the involvement of medical practitioners in G.B.’s treatment that had not had the appropriate licences and that the hospital itself had been carrying out unlicensed medical activities in several fields, such as cardiology and clinical transfusion in relation to the applicant.
The Government had acknowledged the existence of such irregularities but, apart from noting the licensing requirement in domestic law, had not explained how the regulatory provisions were implemented in practice. Indeed, the licences of the hospital in certain areas as well as the licences and certifications of some of its doctors treating the applicant’s son were, at least at the time, in sharp contrast with the various requirements geared at protecting patients’ lives.
The Court therefore concluded that Georgia had failed to fulfil its positive obligation to provide an effectively functioning regulatory framework to protect patients and there had been a violation of Article 2.
The Court also looked at the criminal and civil proceedings in the case under the heading of the procedural limb of Article 2, which requires States to set up an effective and independent judicial system to assess the facts of a case, hold those at fault accountable and provide appropriate redress.
It found that the criminal proceedings had been in line with the requirements of Article 2. Two sets of criminal proceedings had been opened and closed but those decisions had not been arbitrary or taken speedily and proper reasons had been given for them.
In contrast, the civil proceedings had not offered adequate redress to the applicant because in practice Georgian law excluded compensation for non-pecuniary damage in this type of case, which was against European Convention principles concerning Article 2 that such awards should in principle be available. The Court found that an unconditional legislative restriction had unjustifiably deprived the applicant of the opportunity to claim an enforceable award of compensation for non-pecuniary damage through the civil remedy available to her and there had therefore been a violation of the procedural obligation of Article 2.
Just satisfaction (Article 41)
The Court made no award as the applicant had not submitted a claim for one. It observed that domestic law allowed for requests for the re-opening of civil proceedings which had been found to be in violation of the Convention(echrcaselaw.com editing).
